FCA Litigation: Leveraging Statistical Sampling and Extrapolation to Prove or Disprove Liability

Description

Despite the pandemic, the government and qui tam relators filed more FCA cases in 2020 (922) than in any other year since Congress enacted the FCA during the Civil War. The federal government recovered more than $2.2 billion during FY2020. The government's focus on FCA enforcement in the healthcare context remains steadfast, as demonstrated by the government's settlement agreement with a pharmaceutical company in July 2020. The company agreed to pay $678 million to resolve claims that it violated the FCA. The agreement resolved allegations that it improperly used three foundations as conduits to pay Medicare patients' copayments and that it paid kickbacks through speaker programs and related events.

The use of statistical sampling and extrapolation evidence to demonstrate proof of liability in FCA cases is an important and timely issue. For example, in the Life Care case, the district court held the government could use statistical sampling and extrapolation to prove FCA liability where over one hundred thousand individual claims were at issue.

The law on the use of sampling in FCA cases continues to evolve. Attorneys for the government, relators, and healthcare companies should consider how sampling could be used in different kinds of FCA cases, especially those involving liability and issues of medical judgment. Further, the role of experts and Daubert challenges will be important when the parties rely on sampling.

Listen as our authoritative panel of healthcare attorneys examines how statistical sampling and extrapolation are used to prove or disprove liability in FCA litigation. The panel will also examine how different courts have treated statistical sampling and extrapolation and offer best practices for leveraging sampling or combating it to determine liability and damages.